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What Happened to Justice Holmes?
| Article
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16470 |
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Section : |
MODERN THOUGHT
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| Issue
Date : |
5 / 1989 |
8,419 Words |
| Author
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Max Lerner
Max Lerner is a historian and political theorist. He is author
of America as a Civilization (new edition 1987, Holt). His
latest book is Later than You Think: The Need for a
Militant Democracy (1988), a new edition with an introduction
by James MacGregor Burns and a foreword by the author
(Transaction Press 1989). |
Half a lifetime ago, in 1943, when I was instructing the young at Williams College in constitutional history, I wrote and edited a book that I called The Mind and Faith of Justice Holmes. When I recently prepared a new edition, and read the literature of the intervening years on the man whom my own generation regarded as the paradigm of all justices, I was struck by what the succeeding generations had made of him. Born of patrician Boston stock, his father a noted poet and man of letters, Oliver Wendell Holmes, Jr., grew up amid good table talk, the excitement of new ideas, and an obsession with words and style. As a student at Harvard, in college bull sessions with William James and others, he "twisted the tale of the cosmos," was chosen class poet, and seemed headed for a literary and philosophical career. But the intervening Civil War shook up his life convulsively, and gave his thinking an experiential base on which he was to build a life-drama different from anything he had planned. It was a drama in which law and logic, chance, survival, and death were the crucial actors.
"In our youth," he said much later in a speech that became a classic, "our lives were touched with fire. It was given to us to learn at the outset that life is a profound and passionate thing." Holmes turned the fire inward. It saw him through difficult Harvard Law School years, legal scholarship, editing, writing, and a judicial career unparalleled since John Marshall. After the publication of his pathfinding book, The Common Law, he became a justice and later chief justice of the Massachusetts Supreme Court, where he made legal history both in private and public law.
In 1902, after two decades on the state high court, Holmes was appointed by Theodore Roosevelt to the U.S. Supreme Court, where he made constitutional history for thirty years. Just as he had rebelled during the war against an overbearing father to become his own man with his own philosophy, so he showed early as a Supreme Court justice that he was no man's man, not even that of the president who had appointed him. Nor was he the champion or instrument of any cause--liberal or conservative. For a long time Holmes was a lonely fighter on the Court. When he became the idol of the liberal intellectuals because of his great civil liberties dissents after World War I, he enjoyed but also survived their applause, just as he had survived his isolation among the conservatives on the court.
Holmes' constitutional journey was to carve out a philosophy of law and of decision-making. He did it superbly. When he resigned from the Court, at the start of his nineties and just
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